State v. Craddock
| Decision Date | 20 January 1975 |
| Docket Number | No. 55313,55313 |
| Parties | STATE of Louisiana v. Lindy CRADDOCK. |
| Court | Louisiana Supreme Court |
Lyall G. Shiell, Jr., John M. Lawrence, New Orleans, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Woodrow W. Erwin, Dist. Atty., Julian J. Rodrique, Asst. Dist. Atty., for plaintiff-appellee.
The defendant was charged by Bill of Information with the violation of R.S. 40:966(A), distribution of marijuana. He was found guilty as charged after a trial by jury and was sentenced to nine years imprisonment. He has appealed his conviction and sentence, relying upon an alleged error discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence as no Bills of Exceptions were perfected nor, as is directed by the 1974 amendment to Article 920, any Assignment of Errors designated. La.C.Cr.P. Art. 920.
Defendant submits that a sheet bearing three responsive verdicts, 1 (as well as twelve juror signatures and the handwritten verdict notation 'guilty as charged') indicates that four additional responsive verdicts 2 were not charged to the jury and that this failure to charge the additional responsive verdicts is error discoverable under Article 920(2). It has been settled that if the error complained of is discoverable under Article 920(2), the failure to object does not operate as a waiver of that error. State v. Raby, 259 La. 909, 253 So.2d 370 (1971), City of Baton Rouge v. Van Valkenburg, 259 La. 23, 249 So.2d 189 (1971), State v. Carter, 226 La. 281, 76 So.2d 6 (1954).
Some illustrative examples of the record for error discoverable purposes are the caption, a statement of time and place of holding the court, the indictment or information with the endorsement, the arraignment, the plea, mention of the impaneling of the jury, verdict and judgment of the court, State v. Sanford, 248 La. 630, 181 So.2d 50 (1965); the bill of particulars filed in connection with a short form indictment or information, State v. Picou, 236 La. 421, 107 So.2d 691 (1959); in capital cases the minutes must reflect that the jury has been sequestered as required by La.C.Cr.P. Art. 791, State v. Luquette, 275 So.2d 396 (La.1973), State v. Hunter, 306 So.2d 710 (La.1975).
The verdict is normally placed, as required by statute, on the reverse of the list of responsive verdicts given the jury. La.C.Cr.P. Arts. 809, 810. However, mere presence in the record transmitted to this Court is not sufficient, by itself, to allow this Court to review for error under Article 920(2). State v. Sanford, Supra; State v. Wilson, 247 La. 405, 171 So.2d 664 (1965); State v. Bickham, 236 La. 244, 107 So.2d 458 (1958); and State v. Daleo, 179 La. 516, 154 So. 437 (1934).
Absent an objection, the defendant may not on appeal complain of the judge's charge to the jury, even though the charge may happen to appear in the record. State v. Chaney, 273 So.2d 259 (La.1973); State v. Bueche, 243 La. 160, 142 So.2d 381 (1962); State v. Bickham, Supra; State v. Stracner, 190 La. 457, 182 So. 571 (1938); State v. Daleo, Supra; State v. Marqueze, 45 La.Ann. 41, 12 So. 128 (1893); and comment e to La.C.Cr.P. Art. 841.
State v. Daleo explained 'it is not considered proper that the defendant should be permitted to sit idly by while the judge is making an erroneous charge to the jury, take his chances upon the verdict, and, if against him, then by assignment of error or motion in arrest take advantage of it.' 179 La. at 527, 154 So at 441.
We hold that alleged error concerning the sufficiency of the list of responsive verdicts given the jury, like error in the judge's charge to the jury, is not reviewable under Art. 920(2) and may not be considered unless objection is made in the trial court in time for the trial judge to correct the error.
We have reviewed the record for error discoverable by a mere inspection of the pleadings and proceedings and find none. Therefore it is ordered that defendant's conviction and sentence be affirmed.
In my opinion, error concerning the sufficiency of the list of responsive verdicts given the jury is reviewable as a part of the pleadings and proceedings under La.C.Cr.P. art. 920(2). In accordance with that belief, it is my opinion that failure on the part of the defense to object to the list of responsive verdicts submitted to the jury did not constitute a waiver of the error. See State v. Raby, 259 La. 909, 253 So.2d 370 (1971); City of Baton Rouge v. Van Valkenburg, 259 La. 23, 249 So.2d 189 (1971).
In the case before us, the responsive verdicts submitted to the jury listed three responsive verdicts to the charge of distribution of marijuana, I.e., (1) guilty as charged; (2) guilty of attempted distribution of a controlled dangerous substance, to-wit, marijuana; and (3) not guilty. In State v. Stewart, 292 So.2d 677 (La.1974), this Court held that there are seven responsive verdicts possible to a charge of distribution of a controlled dangerous substance, the other four being: (1) possession with intent to distribute; (2) attempted possession with intent to distribute; (3) possession; and (4) attempted possession. In Stewart, the defendant urged that there was error patent on the face of the record in that the verdict, guilty of possession of L.S.D., was not responsive to the crime charged, distribution of L.S.D. to one under eighteen years of age who was at least three years his junior. The Court held that possession of a controlled dangerous substance is a lesser offense included within the crime of distribution and 'is properly a responsive verdict to such a charge.' 292 So.2d at 679.
In my opinion, this defendant was seriously prejudiced by the failure of the court to include the lesser included offenses of the crime charged in its list of responsive verdicts submitted to the jury. Moreover, I believe that this error was error discoverable...
To continue reading
Request your trial
-
State v. Odle, 02-0226.
...thereto is made before the jury retires or within such time as the court may reasonably cure the alleged error." In State v. Craddock, 307 So.2d 342 (La.1975), the defendant claimed that the trial court's failure to include certain responsive verdicts was an error patent. The supreme court ......
-
State v. Houston
...and is not a patent error reviewable on the face of the pleadings. State v. Turner, 337 So.2d 1090 (La.1976) and State v. Craddock, 307 So.2d 342 (La. 1975). However, the failure can constitute ineffective assistance of counsel and reversible error if the appellant shows he was prejudiced b......
-
State v. Myles
... ... 905.4 ... The defense did not submit special charges or object to the trial court's instructions, and therefore did not preserve the issue for appeal. State v. Smith, 339 So.2d 829 (La.1976); State v. Craddock, 307 So.2d 342 (La.1975). Nevertheless, a review of the record is convincing that any error committed was harmless. The trial judge read the pertinent statutes as they were written, and it is not contended that the first degree murder statute as it then read was unconstitutional. The only ... ...
-
State v. Armstead
...to the appellate court is not sufficient to allow review of the document for discoverable error under Article 920(2). State v. Craddock, 307 So.2d 342 (La.1975); State v. Oliveaux. Under State v. Oliveaux and its progeny, the minute entry reflecting the granting of the defendant's motion to......